Summary

Children have the right to be protected from all types of
violence, abuse and neglect. But children also have the right not
to be separated from their parents against their will, except when
the competent authorities determine that such separation is necessary
in the best interests of the child. In the absence of a child being judged
to be at risk or imminent risk of suffering serious harm, in particular
physical, sexual or psychological abuse, it is not enough to show
that a child could be placed in a more beneficial environment for
its upbringing to remove a child from his or her parents and even
less to sever family ties completely.

Children’s rights are violated both by unwarranted decisions
taken in member States to remove them from (or not to return them
to) parental care, and by unwarranted decisions not to remove them
from (or to return them prematurely to) parental care. Member States
should thus put into place laws, regulations and procedures which
truly put the best interest of the child first in removal, placement
and reunification decisions. The competent Council of Europe body
should develop policy guidelines for member States on how to avoid practices
deemed abusive in this context, namely (except in exceptional circumstances)
severing family ties completely, removing children from parental
care at birth, basing placement decisions on the effluxion of time, and
having recourse to adoptions without parental consent.

A. Draft
resolution

(open)

1. Children have the right to be protected from all
types of violence, abuse and neglect. But children also have the
right not to be separated from their parents against their will,
except when competent authorities subject to judicial review determine
that such separation is necessary in the best interests of the child.
Even when such separation is necessary, children have the right
to maintain personal relations and direct contact with both parents
on a regular basis, except if it is contrary to the child's best
interests.

2. In most Council of Europe member States, it is the competent
social services which take the initial decision to remove a child
from his or her family (in particular in urgent cases where the
child is deemed to be in immediate danger), or which apply to the
competent court to have such an initial removal decision taken.
In the majority of member States, this decision is taken on the
basis of the child being judged to be at risk or imminent risk of
suffering serious harm, in particular physical, sexual or psychological
abuse, or of being badly neglected.

3. The number of children taken into care varies widely from
country to country, as does the percentage of children taken into
care who are later reunited with their family. Most countries place
children with relatives, with foster families, in public or private
institutions, or – more rarely – give them up for adoption (again
with varying percentages).

4. Most countries do not have detailed statistics on the ethnic
and religious minority status, immigrant status or socio-economic
situation of children taken into care. Statistical analyses providing
an authentic vision of which groups of children are more exposed
to being removed from their families is also lacking, though evidence
suggests that children from vulnerable groups are disproportionately
represented in the care population of member States. There is, however,
no evidence to suggest that, in similar contexts, parents who are
poor, less educated, belong to an ethnic or religious minority or
have a migration background are more likely to abuse or neglect
their children.

5. Financial and material poverty should never be the only justification
for the removal of a child from parental care, but should be seen
as a signal for the need to provide appropriate support to the family. Moreover,
it is not enough to show that a child could be placed in a more
beneficial environment for its upbringing to remove a child from
his or her parents and even less to sever family ties completely.

6. The Parliamentary Assembly is concerned about the violation
of children’s rights in some countries (or regions thereof), when
social services take some children into care too rashly and do not
make enough effort to support families before and/or after removal
and placement decisions. These unwarranted decisions usually have
a – sometimes unintended – discriminatory character, and can constitute
serious violations of the rights of the child and his or her parents,
all the more tragic when the decisions are irreversible (such as
in cases of adoption without parental consent).

7. The Assembly is also concerned about the violation of children’s
rights in some countries (or regions thereof), when social services
do not take children into care quickly enough, and return children
too rashly to abusive or neglectful parental care. These decisions
can constitute equally – or more – serious violations of the rights
of the child, and can put a child’s life and health in danger. Removal
decisions taken by social services are very fraught, and should
thus only be taken by social workers with special professional training and
qualifications, an appropriate caseload and in an appropriate time
frame.

8. The Assembly thus recommends that member States:

8.1. put into place laws, regulations
and procedures which truly put the best interest of the child first in
removal, placement and reunification decisions;

8.2. make visible and root out the influence of prejudice and
discrimination in removal decisions, including by appropriately
training all professionals involved;

8.3. support families with the necessary means (including financially,
materially, socially and psychologically) in order to avoid unwarranted
removal decisions in the first place, and in order to increase the
percentage of successful family reunifications after care;

8.4. avoid, except in exceptional circumstances, severing family
ties completely, removing children from parental care at birth,
basing placement decisions on the effluxion of time, and having
recourse to adoptions without parental consent (particularly when
these become irreversible);

8.5. ensure that the personnel involved in removal and placement
decisions is guided by appropriate criteria and standards (if possible
in a multidisciplinary way), is suitably qualified and regularly
trained, has sufficient resources to take decisions in an appropriate
time frame, and is not overburdened with too great a caseload;

8.6. collect anonymised data on the care population in member
States which is disaggregated not only by age and gender and alternative
care type, but also by ethnic or religious minority status, immigrant
status and socio-economic background, as well as by length of time
spent in care until family reunification.

B. Draft
recommendation

(open)

1. The Parliamentary Assembly is concerned about the
violation of children’s rights constituted both by unwarranted decisions
taken in member States to remove them from (or not to return them
to) parental care, and by unwarranted decisions taken in member
States not to remove them from (or to return them too early to) parental
care. The Assembly believes children’s rights and their best interests
need to be better protected in these cases, as outlined in Resolution
… (2015) on social services in Europe: legislation and practice
of the removal of children from their families in Council of Europe
member States.

2. The Assembly welcomes the commitment of the Committee of Ministers
to advance children’s rights in this field, including through the
current multi-annual Council of Europe Strategy for the Rights of
the Child (2012-2015). It recommends that the Committee of Ministers
instruct the Committee of Experts on the Council of Europe Strategy
for the Rights of the Child (2016-2019) (DECS-ENF) to:

2.1. include the issue of respecting
children’s rights in decisions to remove them from parental care in
the Council of Europe Strategy for the Rights of the Child 2016-2019;

2.2. building on the United Nations Convention on the Rights
of the Child, United Nations General Assembly Resolution 2010 A/RES/64/142
“Guidelines for the Alternative Care of Children”, Committee of
Ministers Recommendation CM/Rec(2011)12 on children’s rights and
social services friendly to children and families, General comment
No. 14 (2013) of the United Nations Committee on the Rights of the
Child on the right of the child to have his or her best interests
taken as a primary consideration, and “The Common European Guidelines
on the Transition from Institutional to Community-based Care”, develop
policy guidelines for member States on how to avoid, except in exceptional
circumstances, severing family ties completely, removing children
from parental care at birth, basing placement decisions on the effluxion
of time, and having recourse to adoptions without parental consent.

C. Explanatory
memorandum by Ms Borzova, rapporteur

(open)

1. Introduction

1. On 10 October 2012, my colleague, Mr Alexey Pushkov,
and several other members of the Parliamentary Assembly others tabled
a motion for a resolution entitled “The abuse by social services
of member States of the Council of Europe of their authority to
remove children from their parents’ custody” (Doc. 13054). This motion raised concerns about an excessively broad
interpretation by social services of their rights to remove children
from their parents’ custody becoming more frequent. According to
the motion, this measure is often used in relation to children of
migrant families. The authors of the motion thus asked the Assembly
to carry out a thorough analysis of such cases and take measures
in order to “truly protect the rights of children and families where
they live”.

2. The motion was referred to our committee for report (and the
Committee on Legal Affairs and Human Rights for opinion). I was
appointed rapporteur on 24 January 2013, and on 19 March 2013 the
Legal Affairs Committee appointed Mr Volodymyr Pylypenko (Ukraine,
SOC) rapporteur for opinion. Upon my suggestion, our committee changed
the title of the report to a more “neutral” one at its meeting in
Berlin on 15 March 2013.

3. My aim in preparing this report was to study the legislation
and the practice of the removal of children from their families
in Council of Europe member States in order to determine:

whether there has been an increase
in unwarranted removal decisions in the last years;

whether there is a pattern to these decisions: are migrant
parents, parents belonging to national minorities or minority religious
groups or from poor socio-economic backgrounds disproportionately victims
of such unwarranted removal decisions;

how the national laws or implementing guidelines can be
improved in order to improve decision-making at the level of the
social services;

whether there are good practices in some member States
which could inform other member States.

4. Following a discussion of my outline report in committee,
I undertook three fact-finding visits, and reported back to the
committee orally after each one of them: to Finland (13-14 June
2013), Romania (14-15 October 2013) and the United Kingdom (10-11
February 2014). I would like to thank the national delegations and
the members of their Secretariats who facilitated my fact-finding
visits, which were most useful to me in preparing this report.

5. In order to receive information from a maximum number of member
States, the Secretariat distributed a survey on legislation and
practice of the removal of children from their families, through
the European Centre for Parliamentary Research and Documentation
(ECPRD) network in autumn 2013. By 24 January 2014, 30 replies had
been received from the parliaments of 29 member States and from
one observer parliament. A quantative and qualitative analysis
of the replies was presented to the committee in January and April
2014.

6. Finally, during the April 2014 part-session, the committee
organised a joint hearing with the Committee on Legal Affairs and
Human Rights on the issue, with the participation
of two eminent experts, Ms Karen Reid, Registrar of the Filtering
Section of the European Court of Human Rights, and Ms Maria Herczog,
Rapporteur of the United Nations Committee on the Rights of the
Child (UNCRC).

7. I would once more like to underline that this is a general
report, which is not directed against the social services of any
member State, visited or not. However, to make some particular tendencies
visible, I used the information received during my visits, from
the answers to the ECPRD questionnaire and from documents of the
United Nations Committee on the Rights of the Child and judgments
of the European Court of Human Rights.

2. An outline
of the issue at hand

8. The removal of a child from its family is a difficult
decision to take for social services in Council of Europe member
States, for obvious reasons: if the social services do not take
this decision when it is necessary, the child can come to serious
harm, and its most fundamental rights can be violated. But if the
social services take this decision unnecessarily, the child can
also come to harm, and its rights – and the rights of its parents
– can also be violated. Since the decision to take a child into
care is normally subject to judicial decision and/or review, practically
all cases are ultimately decided in court; court judgments are often
appealed to the highest court of the land and some have reached
the European Court of Human Rights. But
the initial removal decision is nevertheless of paramount importance:
once a child has been removed from its family, even if the removal turns
out to be unwarranted, it is often difficult, if
not impossible, to
undo the damage done.

9. The crux of the matter is that some cases are clear-cut, but
many are not. The decision-making process, while often minutely
regulated by law (and implementing guidelines), can also be fraught
with emotion, for example in cases where widely mediatised failure
by the social services to protect another child has led to the death
or serious injury of that child: this may influence the social services
to err on the side of caution. At the same time, even trained, competent
and professional social workers are only human: they may also fall
victim to prejudice, and this may influence their decision to remove
a child from the care of a parent (or parents) who do not fit the
“normal” pattern: migrant parents, parents belonging to national
minorities, from a poor socio-economic background, of a different
religion, etc.

3. The legal situation

3.1. At international
level

10. The legal situation is relatively clear as concerns
the international level. It is built on the United Nations Convention
on the Rights of the Child of 1989, Article 3.1 of which provides:

“In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”

11. As indicated in Article 24.3 of the European Union’s
Charter of Fundamental Rights, “[e]very child shall have the right
to maintain on a regular basis a personal relationship and direct
contact with both his or her parents, unless that is contrary to
his or her interests”.

12. The European Court of Human Rights, based on the European
Convention on Human Rights (ETS No. 5), has summarised the legal
situation well in the case of Neulinger
and Shuruk v. Switzerland (judgment of 6 July 2010):

“134. In this area the decisive
issue is whether a fair balance between the competing interests
at stake – those of the child, of the two parents, and of public
order – has been struck, within the margin of appreciation afforded
to States in such matters …, bearing in mind, however, that the
child’s best interests must be the primary consideration …. The
child’s best interests may, depending on their nature and seriousness,
override those of the parents …. The parents’ interests, especially
in having regular contact with their child, nevertheless remain
a factor when balancing the various interests at stake ….

The child’s interest comprises two limbs. On the one hand,
it dictates that the child’s ties with its family must be maintained,
except in cases where the family has proved particularly unfit.
It follows that family ties may only be severed in very exceptional
circumstances and that everything must be done to preserve personal
relations and, if and when appropriate, to ‘rebuild’ the family
…. On the other hand, it is clearly also in the child’s interest
to ensure its development in a sound environment, and a parent cannot
be entitled under Article 8 to have such measures taken as would
harm the child’s health and development ….”

13. The Court notes that there is currently a broad consensus
– including in international law – in support of the idea that in
all decisions concerning children, their best interests must be
paramount. The concept of the “best interests of the child” has
been key to all international and European treaties and recommendations. However,
application of this concept in practice is a source of concern,
as the UN Committee on the Rights of the Child has lamented frequently
in its reports. This concept is also one of the most widely abused , which led
the Committee to issue “General comment No. 14 (2013) on the right
of the child to have his or her best interests taken as a primary
consideration (art. 3, para. 1)”.

14. In my opinion, it is worth citing the key paragraphs of this
general comment here, as they relate to the removal and placement
of children in alternative care:

“60.
Preventing family separation and preserving family unity are important
components of the child protection system, and are based on the
right provided for in article 9, paragraph 1 [of the UN Convention on
the Rights of the Child], which requires ‘that a child shall not
be separated from his or her parents against their will, except
when … such separation is necessary for the best interests of the
child’. Furthermore, the child who is separated from one or both
parents is entitled ‘to maintain personal relations and direct contact
with both parents on a regular basis, except if it is contrary to
the child’s best interests’ (art. 9, para. 3). …

Given the gravity of the impact on the child of separation
from his or her parents, such separation should only occur as a
last resort measure, as when the child is in danger of experiencing
imminent harm or when otherwise necessary; separation should not
take place if less intrusive measures could protect the child. Before
resorting to separation, the State should provide support to the
parents in assuming their parental responsibilities, and restore
or enhance the family’s capacity to take care of the child, unless separation
is necessary to protect the child. Economic reasons cannot be a
justification for separating a child from his or her parents. …

Likewise, a child may not be separated from his or her
parents on the grounds of a disability of either the child or his
or her parents. Separation may be considered only in cases where
the necessary assistance to the family to preserve the family unit
is not effective enough to avoid a risk of neglect or abandonment of
the child or a risk to the child’s safety.

In case of separation, the State must guarantee that the
situation of the child and his or her family has been assessed,
where possible, by a multidisciplinary team of well-trained professionals
with appropriate judicial involvement, in conformity with article
9 of the Convention, ensuring that no other option can fulfil the
child’s best interests.

When separation becomes necessary, the decision-makers
shall ensure that the child maintains the linkages and relations
with his or her parents and family (siblings, relatives and persons
with whom the child has had strong personal relationships) unless
this is contrary to the child’s best interests. The quality of the
relationships and the need to retain them must be taken into consideration
in decisions on the frequency and length of visits and other contact
when a child is placed outside the family.”

15. At the 18th meeting of the Parliamentary Assembly
Network of Contact Parliamentarians to stop sexual violence against
children, held in Nicosia (Cyprus) on 13 May 2014, Dr Antonios St.
Stylianou, Director of UNic Law Clinic, University of Nicosia and
member of the Senior Advisory Board of “Hope for Children”, UNCRC Policy
Center, made the very good point that “holistic approaches were
needed, based on the principles that an adult’s judgment of a child’s
best interests could not override the obligation to respect all
other rights of the child under the Convention, and that no one
could make a negative interpretation of a child’s best interests”.

16. In this regard, I would also like to make reference to the
judgment of the European Court of Human Rights in the case Wallová and Walla v. the Czech Republic (of
26 October 2006), which laid out very clearly that children should
not have been separated from their family on the sole basis of the
lack of adequate housing for a family with many children, as other,
less intrusive measures would have been available to ensure respect for
the best interests of the children concerned.

3.2. At national level

17. National legislation in most countries of the Council
of Europe complies with international law. The decision-making process
is often minutely regulated by law (and implementing guidelines).

18. Thus, the bar for the decision of social services to remove
a child from its family is generally quite a high one in all Council
of Europe member States, usually involving the concept of serious
harm. The majority of countries who answered the questionnaire (20)
take removal decisions based on serious harm having occurred, the
imminent risk of serious harm, or the risk of serious harm (although
the exact wording may differ from country to country).

19. The definition of what constitutes serious harm differs from
State to State, and has often evolved over time to include not just
physical abuse, but also sexual, emotional or psychological abuse.
Some countries add further possible motives such as “economic violence”,
a child committing a criminal offence or using drugs or other toxic
substances, or a child being beyond parental control.

20. In almost all cases, the final decision to take a child into
care is subject to judicial decision.

21. In most Council of Europe member States, the competent social
services take the initial decision to remove a child from his or
her family (in particular in urgent cases where the child is deemed
to be in immediate danger), or apply to the competent court to have
such an initial removal decision taken.

22. In most countries, social services and courts work hand in
hand to take removal decisions, and often whether or not a court
order is required for the initial removal will depend on the circumstances
of the case, such as whether the parents agree to the removal.

4. A brief overview
of the facts and figures

23. The number of children taken into care varies widely
from country to country. Of the 30 replies received to the questionnaire,
only one country could not provide any statistics (and another one
does not have official statistics at national level). Since many
replies furnished only total numbers (not percentages in relation
to the size of the child population in the country), it is sometimes
difficult to judge whether the number of children taken into care
is in the low, medium, or high range. Similarly, sometimes statistics
were given regarding the total number of children in care, and sometimes
they were given regarding the number of new children taken into
care that particular year.

24. Slovenia stands out as only very rarely removing or restricting
parental rights of one or both parents. According to the replies
given to the questionnaire, other countries in the low range (below
0.5% of the child population in care) are: Andorra, Cyprus, Estonia,
Georgia, Greece, Luxembourg, Montenegro, Norway, Serbia and Turkey.

25. In the medium range (with up to 0.8% of the child population
in care), we have Austria, Croatia, Latvia, Spain, Switzerland,
Sweden, the United Kingdom and Canada (an observer State whose parliament
also holds observer status with the Assembly).

26. On the high end of the scale, with up to 1.66% of the child
population in care, we have Finland, France, Germany, Hungary, Lithuania,
Poland, Portugal, Romania and Russia.

27. Trends are diverging in different countries: while the number
of children taken into care has been decreasing quite dramatically
in Estonia (by more than two thirds in the 10 years from 2002 to
2012), Romania (by more than half since the fall of communism) and
Turkey (by nearly half in the 4 years from 2008 to 2012), the numbers
are rising in Germany (where 39 400 children aged 3 to 18 were taken
into care in 2012) and in Hungary (where the number of children
taken into care has tripled since 1998).

28. Few countries have statistics on the ethnic or religious minority
status, immigrant status or socio-economic background of children
taken into care. In Andorra, about half of children placed had immigrant status,
and most came from a low socio-economic background. In Finland,
there is no official data on the number of children from minorities
or immigrant families taken into care, or on their socio-economic background.
However, from data provided by experts, it appears that children
from immigrant families are not over-represented, but that the majority
of parents who have their children taken away from them have a low socio-economic
background, and that single-parent and divorced families are over-represented.

29. In Germany, between 17.5% and 26.7% of children taken into
care in recent years do not have German citizenship (in comparison,
the foreign population of Germany – not holding German citizenship
– makes up less than 9%). In Norway, children born there to immigrant
parents had the lowest placement rates (0.6%), compared to 0.74%
for children with no immigrant background and 1.93% for immigrant
children. Romania does not collect statistics on the status of children
in care, but non-governmental organisations (NGOs) I met estimated
that nearly 70% of them came from the Roma minority. The United
Kingdom, in contrast, has detailed data on the ethnic background
of children taken into care: “black” or “mixed-raced” children are
over-represented by four times in the care system, while children
with a family background from India, Pakistan and Bangladesh are
under-represented by three times.

30. All 30 countries which responded to the questionnaire confirm
that the child is heard on the removal decision before it is taken.
Most countries take into account the child’s maturity and capacity
of discernment, but some countries have age-limits set by law above
which the child is heard.

31. In most countries, both children and parents have the right
to appeal/ complain to the competent courts. Children do not have
this right in six jurisdictions: Estonia, Germany, Italy, Lithuania,
Poland and Serbia (exceptions apply). Children (and sometimes parents) can address
themselves to instances other than courts in some jurisdictions,
such as a Child Rights’ Commissioner.

32. Most countries place children with relatives, with foster
families, in institutions, or give them up for adoption (though
other possibilities are also mentioned, such as shelters or adolescents
living alone), and percentages differ widely from country to country.
Thus, the percentage of children placed with relatives ranges from
3% (Finland) and 5% (Sweden, United Kingdom), to 63% in Latvia and
75% in Portugal. Foster families take in 0.5% of children in Portugal
and 10% in Estonia, but more than half in France and Spain, 69%
in Norway, and 75% in the United Kingdom. Institutions look after
10% of children in Norway, Portugal and the United Kingdom, and
just over 50% in Hungary and Sweden.

33. The percentages of adoptions range from 1.5% in Portugal and
4% in Estonia to 5% in the United Kingdom (this concerned 3 350
children), 9% in Croatia and Hungary and up to 20% in Andorra (this
concerned four children) of children taken into care.

34. Adoptions are not possible following the removal of a child
from a family in Austria, and none are reported in Finland (where
removal of parental rights is impossible) and Lithuania. Norway
mentions few adoptions (by foster parents).

35. Adoptions without the consent of the parents are not possible
in France, Greece, Luxembourg and Spain. They are rare (practiced
only exceptionally) in: Cyprus, Lithuania, the Netherlands, Romania,
Serbia, Switzerland and Canada. In some countries which proscribe
adoptions without the consent of the parents (for example, in Russia),
the child can be given up for adoption if his/her parents are unknown,
legally incapable or if their whereabouts have been recognised as
unknown by a court. They are possible in Andorra, Croatia, Estonia,
Georgia, Germany (in 2010, 250 children were placed for adoption
without the parents’ consent), Hungary, Italy, Montenegro, Norway,
Poland, Portugal, Slovenia, Sweden, Turkey, and the United Kingdom
(in 2013, 3 020 children were placed for adoption without the parents’
consent).

36. Twenty-one countries do not have statistics on the rate of
successful reunifications with the family of origin. In Estonia,
10% of children removed from their families in 2012 were reunited
with them the same year. In Croatia, the rate of successful reunifications
was 18%, in Germany 53%, in Greece 70%, in Andorra 71%, and in Portugal
over 90%. In Romania, nearly 4 300 children returned to their families
in 2012. In Austria, of the children who returned to their families
in 2012, 60% had been in care for less than 12 months, and 10% for more
than five years. In Russia, the number of parents whose parental
rights have been restored has increased 1.4 times in the last five
years (to 2 256 cases in 2012).

37. Most countries require that social workers who work on removal
cases have completed a three- or four-year university degree in
a relevant subject such as “social work”, “social education”, “social
welfare” or psychology. The following countries also require at
least one year’s work experience in addition: Georgia, Greece, Lithuania,
Slovenia and Sweden. Multidisciplinary teams for this task are set
up in Andorra, Italy, Luxembourg and the United Kingdom.

38. It should be noted that the analysis of the facts and figures
is difficult due to the heterogeneity and ambiguity of the statistical
data, the lack of terminological comparability (including legal
terminology), and the lack of data available on the reversal of
decisions to remove a child from a family. Consequently, estimating the
number of justified or unwarranted decisions of removal does not
appear to be possible.

5. The issues in practice

39. I will argue in the next chapters why it is so important
that the “best interests of the child”-principle be applied in such
a way that not only laws and regulations, but also the actors on
the ground (e.g. social services) truly put the best interest of
the child first in removal, placement and reunification decisions.

5.1. Lack of support
to families

40. There are a number of circumstances which can make
it difficult for parents to fulfil a child’s need to be nurtured,
recognised, empowered and to have a structured upbringing, when,
in principle, they would like to be good parents. These can be personal,
such as alcohol or drug abuse or psychological problems (or even “parental
fatigue”, as one of our interlocutors told us), but also socio-economic,
such as extreme poverty (which can result from factors outside parents’
control such as unemployment and discrimination).

5.1.1. Personal problems

41. Committee of Ministers Recommendation CM/Rec(2011)12
on children’s rights and social services friendly to children and
families, in its Appendix on “The child’s right to protection” (section
C), posits that:

“1. Social services
for children and families should ensure the protection of children
from all forms of neglect, abuse, violence and exploitation by preventive
measures as well as through appropriate and effective interventions.
These should aim for the preservation of family strength and unity,
especially in families facing difficulties.

2. Situations of child abuse and neglect require supportive
and comprehensive services with the aim to avoid family separation
for him or for her. …”

42. In keeping with this recommendation, parents should
also be given more help to deal with psychological problems and
alcohol or drug abuse.

43. New parents (in particular, young parents or one-parent families)
should also be offered help early to develop better parenting skills
– Germany could share good practice here; it runs a scheme of “family
helpers”, where trained professionals help at-risk families develop
a daily routine. Indeed, it is also very important to continue support
to families during the time that a child is placed in alternative
care, so as to increase the chances of successful family reunifications
after care.

44. There is a particular problem which I was made aware of in
the United Kingdom, but which may pose a problem in several other
countries, too: many mothers who are victims of domestic violence
themselves seem to be re-victimised by the child protection system,
as the child witnessing such violence (or threats of it) is considered
to be subject to emotional abuse and thus significant harm. This
means that if the mother has nowhere to turn to her child can be
taken away from her. This is a problem which should not be underestimated, as
the impact of the crisis and the effect of austerity cuts on social
services means that more and more mothers are now trapped in abusive
relationships (with shelters closing) and are afraid to signal domestic
violence lest their children be taken away from them.

45. Similarly, mothers with serious postnatal depression can also
apparently have their children permanently taken away from them,
despite the fact that they may well recover relatively quickly and
be able to be a good parent if treated.

46. I believe that single parents in particular may need more
support to avoid a situation in which it becomes in the best interest
of the child to remove it from parental care.

47. Of course, unfortunately there are also parents who are wilfully
(and criminally) violent, neglectful and otherwise abusive to their
children, and, in such cases, the child’s removal from the family
– including permanently – will indeed be in the best interest of
the child.

5.1.2. Economic problems

48. United Nations General Assembly Resolution A/RES/64/142 “Guidelines
for the Alternative Care of Children” pointed out in its paragraph
15 that: “[f]inancial and material poverty, or conditions directly
and uniquely imputable to such poverty, should never be the only
justification for the removal of a child from parental care ...
but should be seen as a signal for the need to provide appropriate
support to the family”. Recommendation CM/Rec(2011)12 contains similar
provisions.

49. In this context, I would like to cite the Romanian experience.
The most frequent reason why children are taken into care in Romania
actually seems to be poverty (there was consensus on this: this
was the view of the Minister, the Children’s Ombudsman, parliamentarians
and the NGOs). Thus, in the county I visited, 120 km from Bucharest,
the most important removal reason was neglect due to severe poverty.
We are talking extreme poverty here: children ring child helplines
because there is not enough food in the house, for example. In particular
in rural areas, the poverty can be very extreme (also due to the
lack of services in rural areas). Roma families are particularly
hard-hit, in particular when it comes to substandard housing and
unemployment.

50. All my interlocutors mentioned the phenomenon of abandoned
children in this regard: 300 000 Romanian parents have left to work
abroad – and there seem to be more than 100 000 abandoned children left
entirely to their own devices, the others left with one parent,
grandparents or with family friends, who cannot fully provide for
the children. This is an acute problem which can also be observed
in other countries of eastern Europe, and should be given appropriate
attention.

51. I would also like to point out the effects of possible multiple
discrimination in this regard: parental ability to look after their
children well economically-speaking may be affected by joblessness
or homelessness, which in turn may be linked to discrimination based
on belonging to an ethnic minority group such as the Roma, which may
then lead to the development of personal problems such as substance
abuse or neglect, etc.

52. Taking children from extremely poor families into care is
not the right solution: the right solution is to provide better
support and services to these families, including financial and
material support. In a country like Romania, which has been badly
hit by the financial and economic crisis, this is, of course, easier
said than done – though the cost of keeping a child in proper alternative
care is certainly higher than the cost of providing more support
to families. Further efforts must be made in this regard: As the
judge I spoke to pointed out, love is a very strong bond, and many
children would prefer to go hungry rather than be separated from
their family.

53. I think it should be the primary obligation of the State to
ensure that no child goes hungry, for example by instituting a “food
stamp” programme and free school meals rather than removing these
children from their family because of poverty.

5.2. Discrimination

54. Alleging discrimination in removal decisions is a
very sensitive issue. However, when a country has a high percentage
of certain vulnerable groups in its care population – such as overwhelmingly
poor, up to 70% Roma, or up to 25% immigrant – stereotypes and prejudice
may be a contributing factor.

55. The understanding of what is considered to be child abuse
has evolved greatly in the last 50 to 100 years, and often at different rates in
different countries and cultures. Thus, categories such as “risk
of emotional abuse” or even “over-chastisement” can be vague and
easily misunderstood by families who do not belong to the majority
culture. Coupled with a different understanding of the role of the
State in child protection, and possibly deepened by language barriers,
it is understandable that some immigrant and ethnic minority families
feel that they are unfairly “targeted”.

56. This is especially problematic because, if distrust and fear
of discrimination reigns, it becomes difficult for social services
to successfully support the child and its family, and thus avoid
fraught removal decisions. That said, fear of discrimination can
also lead to discrimination in a type of self-fulfilling prophecy,
when the family’s distrustful behaviour in its dealings with the
authorities reinforces previously held stereotypes and prejudice.

57. Migrant families, or families belonging to national minorities,
often do not receive adequate assistance from the social services
because of the language barrier: the family does not speak (or speaks
badly) the official language of the country where they live, and
social services are not provided with an interpreter. This situation often
leads to social workers not being in a position to render the necessary
assistance to the family in a timely manner, which sometimes leads
to the subsequent removal of the child, with all the attendant consequences.

58. In order to make visible the influence of prejudice and discrimination
in removal decisions, better data collection is necessary in most
countries, as I have already pointed out. I also cannot stress enough
the necessity to engage early with at-risk children and their families
and offer them appropriate support, rather than using removal and
placement decisions as the first tool in the arsenal (when it should
be the tool of last resort).

5.3. Lack of resources
and/or qualified personnel

59. A persistent problem in all countries I visited –
and, I assume, in most, if not all member States – seems to be case
overload. For example, one social worker in England has between
16 to 45 families to assess at any one time depending on the area.
The pay structure in England also does not encourage social workers
to stay on the job, so that many social services are understaffed
or staffed with short-term agency staff to a significant degree.
This has an effect on the system: It appears that threshold levels
at which children are deemed to be at risk of significant harm can
also vary based on workload and staff shortages in the child protection
services.

60. In all the countries I visited, and I assume in all other
member States, there have been horrific cases in the past of children
who have been killed by one of their parents (or their parent’s
partner), often following the most harrowing abuse. In many such
cases, social services and/or the police had been alerted to the
plight of the child before its death, but the necessary measures
to protect the child were not taken in time. I believe this reality
must be taken into account when distributing resources to social
services (without playing a blame-game).

61. There is a problem with the lack of qualified personnel in
Romania, in particular in rural areas, also linked to the low salaries
paid in the profession and the freezing of posts, in addition to
a 25% salary cut across the board for all State employees during
the economic crisis. This has an effect on the system as well, albeit
a different one: It seems that sometimes children are returned to
their families of origin without the prior establishment of proper
conditions for their return (e.g. parental training), leading to
some of them returning to the child welfare system, while yet others
just go and live on the streets. Even in Finland, social services
were feeling the strain of the financial and economic crisis to
a certain degree when I was visiting the country.

62. I thus believe it is crucial to ensure that the personnel
involved in removal and placement decisions is suitably qualified,
has sufficient resources to take decisions in an appropriate (neither
rushed nor delayed) time frame, and is not overburdened with too
great a caseload. The Council of Europe has also called for sufficient financial,
infrastructural and human investment to be allocated to achieve
the objectives established in its Recommendation CM/Rec(2011)12.

5.4. Abusive practices

63. Unfortunately, some countries engage in practices
which can only be labelled as abusive, even if they are well-intended.
The most frequent of them are: the unwarranted complete severing
of family ties, often in combination with removing children from
parental care at birth; basing placement decisions on the effluxion
of time; and recourse to adoptions without parental consent.

5.4.1. Unwarranted complete
severing of family ties

64. As I already underlined in the third chapter of this
report, children have the right, guaranteed to them in Article 9.3
of the United Nations Convention on the Rights of the Child, to
maintain personal relations with their parents:

“States Parties shall respect the right of the child who
is separated from one or both parents to maintain personal relations
and direct contact with both parents on a regular basis, except
if it is contrary to the child’s best interests.”

65. This right has been expansively interpreted in the
last twenty-five years by the UNCRC to also encompass other family
members (“siblings, relatives and persons with whom the child has
had strong personal relationships”). The UNCRC also
posited in its most recent General Comment that the “quality of the
relationships and the need to retain them must be taken into consideration
in decisions on the frequency and length of visits and other contact
when a child is placed outside the family”.

66. In the same vein, children in alternative care also have the
right to have their situation reviewed regularly with the aim of
reintegration of the child into the family and society by provisions
of aftercare (Recommendation CM/Rec(2011)12). The European Court
of Human Rights has also underlined that “it is in the child’s best interests
that his ties with his family be maintained except where the family
has proved particularly unfit … It is clear from the foregoing that
family ties may only be severed in very exceptional circumstances
and everything must be done to preserve personal relations and,
where appropriate, to ‘rebuild’ the family. It is not enough to show
that a child could be placed in a more beneficial environment for
his upbringing”.

67. Of course, there are situations where it is indeed in the
best interest of the child to completely sever its ties with parents
who are wilfully (and often criminally) violent, neglectful and
otherwise abusive. However, I believe that these situations are
not as common as the frequency of recourse to the complete severing
of family ties would suggest: in many cases, parents can (and do)
change their behaviour, in particular if it is due to external circumstances
such as extreme poverty or intimate partner violence, mental illness
which can be treated or substance abuse which can be ended. Indeed,
the temporary removal of a child can be the “wake-up”-call which
can lead a parent to at last seek help in a bid to be reunited with
the child. This is why it is so important to collect and analyse
data on the percentage of successful reunifications, including the
length of time spent in alternative care (as Austria does, for example).

5.4.2. Frequent recourse
to removing children from parental care at birth

68. In this regard, frequent recourse to removing children
from parental care at birth should be a warning sign. Indeed, the
European Court of Human Rights has qualified such a removal as “an
extremely harsh measure” and “drastic”, and has thus posited that
a newborn can be removed from his or her mother only for “extraordinarily
compelling reasons”.

69. My attention has been drawn to a number of cases in which
a mother who had already had a child taken into care (for example,
because she was considered an unfit parent because of her very young
age, because she was in an abusive relationship with the father,
because of substance abuse, because of mental illness), had another
child removed from her care at birth many years later, despite a
total change of circumstances.

5.4.3. Basing placement
decisions on the effluxion of time

70. Similarly, the European Court of Human Rights abhors
basing placement decisions on the effluxion of time. For example,
placing a young child in a foster family while severely limiting
contact with the birth family, and then, a few years later, allowing
that foster family to adopt the child simply because the child is
now “settled” in the foster family while, in the meantime, the birth
family would be able to provide a perfectly secure and good environment
for the child’s upbringing, makes a mockery of both children’s and
parents’ rights. Luckily, I have not come across too many such decisions
in my research.

5.4.4. Frequent recourse
to adoptions without parental consent

71. Like frequent recourse to removing children from
parental care at birth, frequent recourse to adoptions without parental
consent should also be a warning sign. Indeed, some countries expressly
forbid adoptions following the removal of a child from his/her birth
family, as outlined earlier.

72. England and Wales are
really unique in Europe in placing so many children for adoption,
in particular in the young age group which is “popular” on the adoption
market. Statistics show that under 20% of children forcibly taken
from parents who leave care aged under five, return to their parents.
The former Prime Minister Tony Blair went so far as to establish
“adoption targets” for local authorities from 2001 to 2008.

73. While these targets have been officially abolished, the Secretary
of Education at the time of our fact-finding visit, Michael Gove,
himself adopted, has also put much emphasis on increasing adoption
rates with a view to the 7 000 children on waiting lists in England
being adopted, and has allowed 30 large private adoption agencies
and a plethora of smaller ones to get involved in the process. Identifying
alternative carers within the family circle through “family group
conferences” earlier in the process could be a better way of ending
the over-reliance on adoption by strangers and making it really
the solution of last resort, “when nothing else will do” – which
is meant to be the threshold standard as set by English/Welsh law
and enforced in English/Welsh courts.

74. My attention has been drawn to a handful of cases which are
extremely tragic and concern miscarriages of justice. In several
of these cases, an underlying medical condition of the child such
as brittle bone disease or rickets was overlooked, and the children
were placed for adoption (without parental consent). The tragedy is
that even when the parents finally win in court, and can prove their
innocence, they cannot get their children back, because a flaw in
the English/Welsh legal system means that adoption orders cannot
be reversed in any circumstances – in a misunderstanding of the
“best interest of the child” who actually has a right to return
to his/her birth family.

5.5. Insufficient data
collection

75. The United Nations Committee on the Rights of the
Child publishes regular reports on the implementation of the United
Nations Convention on the Rights of the Child by States Parties.
It regularly remarks on the “insufficient data collection on living
conditions of children in vulnerable situations, and on abuse, neglect
and violence against children and on services provided to them”.

76. I cannot stress enough the importance of proper data collection.
Allow me to take the example of the United Kingdom when it comes
to collecting data on the ethnic background of children taken into
care: as pointed out in paragraph 29, children of certain ethnic
backgrounds are largely over-represented in the British care system,
while others are largely under-represented.

77. As the Head of Policy at the NGO National Society for the
Prevention of Cruelty to Children (NSPCC), whom I met, pointed out,
both over-representation and under-representation can be problematic:
services which should be there for all are often less well developed
for ethnic minority communities, which means that families come
to the notice of the authorities only when it is too late, in the
middle of crisis situations (which leads to over-representation)
– or not at all, because the community is too closed up and no-one
knows how to deal with culture-specific threats such as “honour”-based
violence and the local authorities are loathe to intervene (which
leads to under-representation). With this type of data being collected,
the United Kingdom has the possibility to identify the problem and
start addressing it – which is not the case if a country is “blind” because
it does not collect relevant data.

78. It seems that every country has its own “blind spots” because
of insufficient data collection: even the United Kingdom does not
collect data systematically on other common “blind spots” such as
the socio-economic background of children taken into care or their
immigration status. The majority of the countries which answered
the questionnaire (21 out of 30) also did not have any statistics
on the rate of successful reunification with the family of origin.
Here, Austria can inform good practice, as it also collects data
on the length of time children spend in care before being reunited
with their families.

79. I would thus urge governments to collect data on the care
population in member States which is disaggregated not only by age
and gender and alternative care type, but also by ethnic/religious
minority status, immigrant status and socio-economic background,
as well as by length of time spent in care until family reunification.

5.6. Other issues

80. Another problematic aspect in many countries is the
organisation of social services in a very decentralised way, for
example at the level of the municipalities. When there are no unified
nationwide standards establishing criteria for placement in alternative
care, on care planning and regular review of placement decisions
of children removed from their families, this can lead to subjective
decisions of social workers. Coupled with a relatively weak system
of control at national level, this can result in a sort of “postcode lottery”,
which is aggravated by budgetary constraints in the context of the
current economic crisis.

81. Finally, it bears noting that the European Court of Human
Rights has been particularly critical when siblings were separated.
In the judgment Olsson v. Sweden (1988),
the Court found a violation of Article 8 of the Convention on the
grounds of siblings being separated and placed in foster homes at
great distance from each other and their parents:

“81. As for the remaining aspects
of the implementation of the care decision, the Court would first observe
that there appears to have been no question of the children’s being
adopted. The care decision should therefore have been regarded as
a temporary measure, to be discontinued as soon as circumstances
permitted, and any measures of implementation should have been consistent
with the ultimate aim of reuniting the Olsson family.

In point of fact, the steps taken by the Swedish authorities
ran counter to such an aim. The ties between members of a family
and the prospects of their successful reunification will perforce
be weakened if impediments are placed in the way of their having
easy and regular access to each other. Yet the very placement of
Helena and Thomas at so great a distance from their parents and
from Stefan (see paragraph 18 above) must have adversely affected
the possibility of contacts between them. This situation was compounded
by the restrictions imposed by the authorities on parental access;
whilst those restrictions may to a certain extent have been warranted
by the applicants’ attitude towards the foster families (see paragraph
26 above), it is not to be excluded that the failure to establish
a harmonious relationship was partly due to the distances involved.
It is true that regular contacts were maintained between Helena
and Thomas, but the reasons given by the Government for not placing
them together (see paragraph 79 above) are not convincing. …”

6. Conclusions and
recommendations

82. The questions I set out to answer at the beginning
of this report are:

Is there
an increase in unwarranted removal decisions in Council of Europe
member States?

Is there a pattern to these decisions: are migrant parents,
parents belonging to national minorities or minority religious groups
or from poor socio-economic backgrounds disproportionately victims
of such unwarranted removal decisions?

How can the national laws or implementing guidelines be
improved in order to improve decision-making at the level of the
social services?

Are there good practices in some member States which could
inform other member States?

6.1. Conclusions

83. On the first question, due to the insufficient data
collection and analysis in member States, it is impossible to answer
the question outright, whether there is an increase in unwarranted
removal decisions in Council of Europe member States. However, the
information and evidence I was able to collect point towards two
principal trends and possible conclusions of this report:

83.1. On the one hand, in some countries
(or regions thereof) social services take some children into care
too rashly, and do not make enough effort to support families before
and/or after removal and placement decisions. These unwarranted
decisions usually have a – sometimes unintended – discriminatory
character to them, and can constitute serious violations of the
rights of the child and his or her parents, all the more tragic
when the decisions are irreversible (such as in the cases of adoption without
parental consent).

83.2. On the other hand, in some countries (or regions thereof)
social services do not take children into care quickly enough, and
return children too rashly to abusive or neglectful parental care.
These decisions can constitute equally – or more – serious violations
of the rights of the child, and can put a child’s life and health
in danger.

84. On the second question, most countries lack statistics and
statistical analysis on the removal of children from families belonging
to ethnic or religious minorities, migrant families, or families
from socio-economically disadvantaged backgrounds. This complicates
the qualitative analysis of the causes and prevents the adoption of
effective public policies in the areas of prevention and of assistance
to families.

85. On the third question, the legislation of Council of Europe
member States as a whole corresponds to international standards,
but lacks enforcement. In the countries I visited, the national
laws (and often the guidelines) were not the main problem – it was
the way the laws and guidelines were being interpreted and implemented
by actors on the ground, taking (or not) the initial removal, placement
and reunification decisions. While certainly well-intended in most
cases, these decisions were sometimes tainted by a misunderstanding of
the “best interests of the child”-principle, vicious circles of
self-reinforcing stereotypes and prejudice leading to discrimination,
or simply by overwork or lack of experience of the personnel taking
the decisions. As detailed above, rare cases of abusive practices
were also brought to my attention.

86. On the fourth question, there are good practices in some member
States which could inform other member States, as I have pointed
out in this report.

6.2. Recommendations

87. It is my firm conviction that the first thing every
single member State should do is to improve its data collection.
Data on the care population in member States should be disaggregated
not only by age and gender, and alternative care type, but also
by ethnic and religious minority status of the families concerned,
immigrant status and socio-economic background, as well as by length
of time spent in care until family reunification.

88. My second recommendation is to support families more: with
proper, early and sustained support (including financial and material
support to families struggling with poverty, and psychological support
to parents who have personal problems). In this regard, I would
recommend that member States elaborate national programmes on social
support to particularly vulnerable groups (for example, very young
parents, single mothers, victims of domestic violence, parents with
disabilities or mental illness), to assure that many more children
can stay in their families in the first place, and more could be
successfully reunited with their families following a period of
alternative care.

89. My third recommendation concerns the fact that the quality
of the decisions made is dependent on the people making them. More
money needs to be invested into the following measures:

proper professional qualification
and special training of social workers;

adequate staffing of social services in order to avoid
overburdening social workers with too high a caseload;

adequate salaries for social workers;

the development of appropriate criteria and standards
for the removal of children from their families in order to avoid
subjective errors.

90. My fourth recommendation is to studiously avoid abusive practices,
which should constitute a warning sign that something in the system
is badly wrong, such as frequent recourse to: severing family ties
completely; removing children from parental care at birth; basing
placement decisions on the effluxion of time; and adoptions without
parental consent.

91. If we manage to ensure that these recommendations are put
into practice, we will have made a big step towards putting into
place social services, laws and regulations, and practice which
truly put the best interest of the child first in removal, placement
and reunification decisions – to the benefit of all children.

92. Progress on this front should be monitored by the intergovernmental
side of the Council of Europe: the Committee of Ministers, in the
framework of the next Strategy for the Rights of the Child (2016-2019),
should undertake follow-up work to ensure that member States implement
the relevant international and European standards in the area of
the removal of children from their families, including the Guidelines
for the Alternative Care of Children adopted by the United Nations
General Assembly A/RES/64/142 (2010), Committee of Ministers Recommendation
CM/Rec(2011)12 on children’s rights and social services friendly
to children and families, and General comment No. 14 (2013) of the
United Nations Committee on the Rights of the Child on the right
of the child to have his or her best interests taken as a primary
consideration.